# Rehan Ahmad v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 1492
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-13
- **Case number:** Special Appeal No. 769 of 2023
- **Bench:** Ashwani Kumar Mishra, Syed Qamar Hasan Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rehan-ahmad-v-state-of-u-p-ors-51956
- **Pages:** 11

## Headnote

(A) Education Law - Allahabad High Court
Rules (Rules of the Court, 1952) - Rule 5 of
Chapter VIII - Special Appeal - Validity of
Scheme of Administration and competence
of Registrar - Uttar Pradesh Madarsa
Education Board Act, 2004 - Sectio 3 ,3(3)
, 22(5) - Uttar Pradesh Non-Governmental
Arabic and Persian Madarsa Recognition,
Administration and Services Regulation,
2016 - Regulation 16 - disciplinary action
can be taken, against teaching and nonteaching staff of a Madarsa only in
accordance with the duly approved Scheme
of Administration - appeal against the
order passed with the consent of the
parties are normally not entertainable in
unless any such legal question is involved
that
may
cause
a
serious
legal
consequence - only non-contesting parties
have privilege to prefer appeal.(Para -
9,21,22)

Challenged validity of Scheme of Administration
and competence of Registrar - dismissed from
service by Madarsa - filed writ petition
challenging dismissal order - disposed of by Writ
Court - Registrar of Uttar Pradesh Madarsa
Education Board set aside dismissal order -
directed -Manager to reinstate appellanat -
Committee of Management also filed a writ
5 All. Rehan Ahmad Vs. State of U.P. & Ors.
1493
petition challenging Registrar's order - Writ Court
set aside Registrar's order & remitted matter to
Registrar for a fresh order - hence appeal -
Scheme of Administration was not challenged
earlier - Registrar's order was passed with
consent of parties.
(Para - 1 to 8)

HELD: - Special Appeal arising out of an order
passed with consent of the parties incompetent
and
not
maintainable.
Remedy
lies
in
approaching the learned Single Judge for
recall/review of the order, if the parties feel that
the consent order was passed on wrong
premises. Open to the parties to press their pleas
before the Registrar. Registrar was directed to
pass an order strictly in accordance with law. No
reason
to
interfere
with
the
impugned
order.(Para - 22,23)

Special Appeal dismissed. (E-7)

List of Cases cited:

## Text

1492 INDIAN LAW REPORTS ALLAHABAD SERIES
notification dated 30.08.2019 was issued by
the Ministry of Law and Justice in exercise
of the powers conferred by sub-Section (2)
of Section 1 of the Amending Act 2019 by
which 30.08.2019 was appointed as the date
on which the provisions contained in
Section 1; Sections 4 to 9 (both inclusive);
Sections 11 to 13 (both inclusive); Section
15 of the Amending Act 2019 shall come
into force. The words used in the
notification: - "the provisions of the
following Sections of the said Act" refer to
the Amending Act 2019 and not the original
Act 1996. Now, when we peruse the
Amending Act 2019, we find that no date
has been appointed for coming into force of
Section 3 of the Amending Act 2019 by
which Section 11 (7) of the original Act
1996 is sought to be omitted, meaning
thereby, sub-Section (7) of Section 11 of the
Act
1996
barring
a
Letters
Patent
Appeal/Special Appeal against an order
passed under Section 11 (4) (5) (6) of the Act
1996, still exists, therefore, the bar continues
so long as Section 3 of the Amending Act
2019 is not notified.

12. This being the position, there is
a statutory bar in the Act 1996 which is a
special enactment and Chapter VIII Rule of
the High Court Rules cannot be read,
understood and applied contrary to the said
provision, therefore, this special appeal is
not maintainable.

13. We dismiss the special appeal as
not maintainable, leaving it open for the
appellant to pursue other remedies as may be
permissible in law.

14. The records of First Appeal
From Order No. 718 of 2008 which were
summoned by us shall be returned to the
concerned section.
----------
(2024) 5 ILRA 1492
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.05.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SYED QAMAR HASAN RIZVI, J.

Special Appeal No. 769 of 2023

Rehan Ahmad ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Mohammad Ali Ausaf, Sri Sankalp Narain

Counsel for the Respondent:
C.S.C., Sri Pranav Mishra, Sri Sanjeev Singh

(A) Education Law - Allahabad High Court
Rules (Rules of the Court, 1952) - Rule 5 of
Chapter VIII - Special Appeal - Validity of
Scheme of Administration and competence
of Registrar - Uttar Pradesh Madarsa
Education Board Act, 2004 - Sectio 3 ,3(3)
, 22(5) - Uttar Pradesh Non-Governmental
Arabic and Persian Madarsa Recognition,
Administration and Services Regulation,
2016 - Regulation 16 - disciplinary action
can be taken, against teaching and nonteaching staff of a Madarsa only in
accordance with the duly approved Scheme
of Administration - appeal against the
order passed with the consent of the
parties are normally not entertainable in
unless any such legal question is involved
that
may
cause
a
serious
legal
consequence - only non-contesting parties
have privilege to prefer appeal.(Para -
9,21,22)

Challenged validity of Scheme of Administration
and competence of Registrar - dismissed from
service by Madarsa - filed writ petition
challenging dismissal order - disposed of by Writ
Court - Registrar of Uttar Pradesh Madarsa
Education Board set aside dismissal order -
directed -Manager to reinstate appellanat -
Committee of Management also filed a writ
5 All. Rehan Ahmad Vs. State of U.P. & Ors.
1493
petition challenging Registrar's order - Writ Court
set aside Registrar's order & remitted matter to
Registrar for a fresh order - hence appeal -
Scheme of Administration was not challenged
earlier - Registrar's order was passed with
consent of parties.
(Para - 1 to 8)

HELD: - Special Appeal arising out of an order
passed with consent of the parties incompetent
and
not
maintainable.
Remedy
lies
in
approaching the learned Single Judge for
recall/review of the order, if the parties feel that
the consent order was passed on wrong
premises. Open to the parties to press their pleas
before the Registrar. Registrar was directed to
pass an order strictly in accordance with law. No
reason
to
interfere
with
the
impugned
order.(Para - 22,23)

Special Appeal dismissed. (E-7)

List of Cases cited:

1. Arshad Javed Khan Vs St. of U.P. & ors., WRITA No. 10967 of 2022

2. Committee of Management, Madarsa Masdarul
Uloom Asdaqiya & ors.Vs Arshad Javed Khan &
Ors., 2023 (3) ADJ 605 (DB)

3. Committee of Management Madarsa Masdarul
Uloom Asdaqiya Purani Chakiya & anr. Vs Arshad
Javed Khan & ors., Special Leave Petition (Civil)
No. 9393 of 2023

4. Godde Venkateshwara Rao Vs Govt. of A.P. &
ors. AIR 1966 SC 828

5. St. of Uttaranchal through Collector, Dehradun
& ors. Vs Ajit Singh Bhola & ors., 2004 (6) SCC
800

6. Ashok Kumar Pandey & ors .Vs Basic Shiksha
Adhikari & ors., 1992 (2) UPLBEC 960 (DB)

7. Asha Saxena Vs S. K. Chaudhari & ors., 1990
(01) UPLBEC 516. (FB)

8. United India Insurance Company Ltd. Vs B.
Rajendra Singh & ors., JT 2000(3) SC 151)

9. Ram Chandra Singh Vs Savitri Devi & ors.,
2003(8) SCC 319)
10. Employers in Relation to the Management of
Bhalgora Area of Bharat Coking Coal Limited Vs
Workmen being represented by Janta Mazdoor
Sangh, (2021) 10 SCC 717

11. S.P. Chengal Varaya Naidu (dead) by L. Rs Vs
Jagannath (dead) by L. Rs & ors., AIR 1994 SC
853

12. C/M Madarsa & anr. Vs St. of U.P. & 7 ors.,
Writ Petition No.11817 of 2023

(Delivered by Hon'ble Syed Qamar Hasan
Rizvi, J.)

1. The instant intra Court Appeal
has been filed by the appellant-respondent
no. 4 under Rule 5 of Chapter VIII of
Allahabad High Court Rules (Rules of the
Court, 1952), against the judgment and
order dated 07.11.2023 passed in Civil Misc.
Writ-A No. 11817 of 2023 (Committee of
Management
Madarsa
Sayeedul-Uloom
(Behka) Post Office Puramufti, District-
Allahabad through its Manager and another
versus State of U.P. and others), by means of
which the Hon'ble Single Judge partly
allowed the writ petition filed by the
Committee
of
Management,
Madarsa
Sayeedul-Uloom
(Behka)
Post
Office
Puramufti, District- Allahabad through its
Manager Mohd. Ishaq (hereinafter referred
to as 'Committee of Management').

2. Facts that are culled out from the
pleadings and the material available on
record before this Court that the appellant
herein was appointed as Assistant teacher in
Tahtaniya (Class 1 to 5) in the Madarsa
Sayeedul-Uloom
(Behka)
Post
Office
Puramufti, District- Allahabad (hereinafter
referred to as 'Madarsa') on 25.03.2005,
based upon his eligibility for the post i.e. the
'Hafiz Certificate' said to have been issued
in the year 1992 by the Madarsa Islahul
Muslemeen,
Alipurjeeta,
District
Kaushambi, as claimed by the appellant. It
1494 INDIAN LAW REPORTS ALLAHABAD SERIES
has not been disputed by the contesting
parties in the present case that the appellant
has been working as an Assistant Teacher in
the Madarsa (respondent no. 4) since the
date of his appointment.

3. The District Minority Welfare
Officer,
Prayagraj
vide
letter
dated
22.02.2022 directed the Madarsa concerned
to furnish a report as desired by the
Registrar, U.P. Board of Madarsa Education,
Lucknow vide his letter dated 14.02.2022 in
respect of the teachers appointed on the
basis of the 'Hafiz Certificate' that from
which institution the said certificate was
issued and about the issuing authority, for its
onward transmission to the Registrar
(respondent no.2). During the said process,
the appellant herein was required to provide
the aforesaid 'Hafiz Certificate' in original
but he failed to produce the same. The
contention of the learned counsel for the
Committee of Management (respondent
no.4) is that upon verification from the
Madarsa Islahul Muslemeen, Alipurjeeta,
District Kaushambi (respondent no.6) from
where the appellant claimed to have
obtained the 'Hafiz Certificate', but the said
Madarsa (respondent no.6) denied the
issuance of the said 'Hafiz certificate'. As a
consequence of the same, the Committee of
Management of the Madarsa (respondent
no. 4) initiated disciplinary proceedings
against the appellant. Accordingly the
appellant was placed under suspension and
a show cause notice was issued, to which he
duly replied and since the reply filed by the
appellant was not found to be satisfactory, a
Charge-Sheet dated 05.08.2022 was issued
by
the
Committee
of
Management
(respondent no.4). The appellant submitted
his reply to the said charge-sheet on
29.08.2022 and thereafter, the Enquiry
Officer submitted his enquiry report on
06.09.2022
holding
therein
that
the
appellant could not prove the genuineness of
the 'Hafiz Certificate'. On the basis of the
said enquiry report, a resolution by the
Committee of Management (respondent
no.4) is stated to have been passed on
17.09.2022 for the dispensation of the
services of the appellant and consequently
the order of dismissal from service was
communicated
to
the
appellant
on
21.09.2022.

4. Against the aforesaid dismissal,
the appellant herein preferred a writ petition
being Writ-A No. 19669 of 2022 (Rehan
Ahmad versus Uttar Pradesh Board of
Madarsa Education and others), which came
to be disposed of vide order dated
24.01.2023 in the wake of the fact that there
existed an alternative remedy available in
terms of paragraph no.11 of the 'Scheme of
Administration'. The operative portion the
order dated 24.01.2023 passed by the
Hon'ble Single Judge in Writ-A No. 19669
of 2022 is quoted hereinbelow,

"Learned counsel for parties have
not disputed that there is an alternative
remedy available in terms of paragraph 11
of the Scheme of Administration to
challenge the impugned order. However, a
contention has been raised on behalf of
petitioner that order impugned is still not
send to the Registrar U.P. Madarsa Shiksha
Parishad to which learned counsel for
respondents has made an objection.
Be that is it may, since there is an
agreement between the parties that there is
an alternative remedy available in terms of
paragraph
11
of
the
Scheme
of
Administration to challenge the impugned
order, this writ petition is disposed of with
direction to the Committee of Management
that if the impugned order is still not sent, it
will be sent forthwith to the authority
concerned within a period of sixty day after
5 All. Rehan Ahmad Vs. State of U.P. & Ors.
1495
hearing the parties on merit in accordance
with law"

5. In pursuance of the aforesaid
order dated 24.01.2023 passed by the Writ
Court, the respondent no.2 issued notices to
the concerned parties including notice to the
respondent no.6 and decided the matter vide
order dated 19.06.2023, whereby the
petitioner was reinstated in service.

6. Assailing the aforesaid order
dated 19.06.2023 passed by the Registrar
(respondent no.2), the Committee of
Management of Madarsa (respondent no. 4)
filed a writ petition which was registered as
Writ- A No. 11817 of 2023 (C/M Madarsa
and another versus State of U.P. and others)
inter alia challenging the veracity of the
order dated 19.06.2023 passed by the
Registrar (respondent no.2). ]

7. The Learned Writ Court by a
detailed judgment and order decided the
aforesaid writ petition vide the impugned
order dated 07.11.2023. The relevant portion
of the same is reproduced as under:

"18. This Court from the perusal
of the order impugned passed by the
second respondent, Registrar/Inspector
Uttar
Pradesh
Board
of
Madarsa
Education finds that the said order suffers
from fundamental defect making it not only
vulnerable but vitiated. The second
respondent,
Registrar/Inspector
Uttar
Pradesh Board of Madarsa Education has
completely
overlooked
the
settled
principle of law that eligibility is to be
seen on the last date of submission of the
application form. He has relied upon the
qualifications obtained by the fourth
respondent post advertisement. A further
question also arises that what would be
the import and impact of the continuance
of the fourth respondent since 2005 till the
passing of the order/the verification
exercise undertaken by the writ petitioners
with regard to the doctrine of equity. These
issues are also need consideration while
deciding the issues in question. The
second respondent is also required to go
into the issue relating to the effect of nonverification
of
Hafiz
certificate
particularly when the stand of the
respondents is that the register containing
the details about the Hafiz certificate
possessed by the fourth respondent was
not verifiable. In the opinion of the Court,
the second respondent was required to
take a further exercise while going deeply
into the issue as to what would be the net
consequences
when
the
register
maintained for the said purposes did not
suggest or prove that the qualification
obtained by the writ petitioner, Hafiz
certificate was not verifiable. No such
exercise appears to have been undertaken
by
the
second
respondent,
Registrar/Inspector Uttar Pradesh Board
of Madarsa Education, Lucknow, lastly,
the Court further finds that though a
finding has been recorded that there has
been violation of principles of natural
justice and the disciplinary proceedings
was conducted de hors the regulations but
no reasons are forthcoming in the order
impugned in coming to the said conclusion.
Obviously, reasons are the heart beat and in
absence of any reasons in coming to the
conclusion the order becomes vitiated. Since
the order impugned does not address the
core and fundamental issues, thus, the order
is liable to be set aside. At this juncture, Sri
Tarun Agarwal, learned counsel who
appears for the fourth respondent, Sri
Pranav Mishra, learned counsel who
appears for the second respondent and
learned Standing Counsel who appears for
respondents Nos. 1 and 3 have made a
1496 INDIAN LAW REPORTS ALLAHABAD SERIES
statement at bar that the order dated
19.06.2023 be set aside and the matter be
remitted back to the second respondent to
pass a fresh order.
19. To such a submission, learned
counsel for the writ petitioners has no
objection, however, he submits that he may
be also allowed to raise all contentions
seeking jurisdictional issue also.
20. Sri Pradeep Kumar Shahi,
learned Additional Chief Standing Counsel
and Sri Pranav Mishra have no objection to
the same.
21. Considering the submission of
the rival parties as well as the stand taken
by them, the writ petition is being decided in
the following terms:
(a) the order dated 19.06.2023
passed by the second respondent is set
aside;
(b) the matter stands remitted back
to second respondent to pass a fresh order
after putting to notice the writ petitioners,
fourth and also the fifth respondent while
fixing a particular date;
(c) on the date so fixed by the second
respondent the version submitted by the writ
petitioners, fourth respondent and fifth
respondent be exchanged and after hearing,
the orders be passed within a period of six
weeks from the date of production of
certified copy of the order.

22. Needless to point out that the
second respondent shall pass an order
strictly in accordance with law dealing with
each and every contentions either legal or
factual raised by the respective parties.
23. With the aforesaid observations,
the writ petition stands partly allowed."

8. Being aggrieved by the said order
dated
07.11.2023,
the
appellant
has
approached this Court by means of the
instant Special Appeal. Assailing the said
impugned order, learned counsel for the
appellant contended as under:

9. The foremost submission as
advanced by Sri Sankalp Narain, the learned
counsel for the appellant is that by setting
aside the order dated 19.06.2023 passed by
the Registrar, Madarsa Education Board
(respondent no.2) the Hon'ble Single Judge
has effectively revived the illegal resolution
and
dismissal
order
passed
by
the
Committee of Management (respondent no.
4) dated 17.09.2022 and 21.09.2022
respectively. His contention is that as per the
provisions of 'U.P. Madarsa Education
Board Act, 2004' and Regulation 16 the
'Uttar Pradesh Non-Governmental Arabic
and
Persian
Madarsa
Recognition,
Administration and Services Regulation,
2016' clearly provides that disciplinary
action can be taken, against teaching and
non-teaching staff of a Madarsa only in
accordance with the duly approved Scheme
of Administration, but in the instant case, the
Registrar (respondent no.2) on 20.05.2023
itself suspended the approval order dated
30.08.2022 granted to the Scheme of
Administration of 31 Madarsas including
that of the Madarsa (respondent no. 4) on the
ground that the said approval was in
contravention to the provisions of Section
22(5) of the U.P. Madarsa Education Board
Act, 2004. In support of his contention, he
submitted that in terms of Section 2(a)
conjointly read with Section 3 and 22(5) of
U. P. Madarsa Education Board Act of 2004,
it was the Madarsa Education Board duly
constituted under Section 3 of the U. P.
Madarsa Education Board Act, 2004 and
was exclusively empowered to approve the
Scheme of Administration of the Madarsa.
The Registrar, Madarsa Education Board
merely happens to be a member of the
Madarsa Education Board in terms of
Section 3(3) of the Act and was not
5 All. Rehan Ahmad Vs. State of U.P. & Ors.
1497
individually empowered to approve the
Scheme of Administration. He submitted
that on being noticed that the said approval
dated 03.08.2022 was granted by the
Registrar, Madarsa Education Board in its'
individual capacity and suffers from the
defect of coram non judice, the Registrar
(respondent no.2) itself issued an order
dated 20.05.2023 whereby it suspended the
aforesaid approval granted to the Scheme of
Administration of Madarsa (respondent no.
4) till an approval in that regard is granted
by the U. P. Madarsa Education Board in
terms of Section 22(5) of the U. P. Madarsa
Education Board Act, 2004.

10. It has also been asserted on
behalf of the appellant that the ramification
of the aforesaid suspension order dated
20.05.2023
passed
by
the
Registrar
(respondent no. 2) is that once the order of
approval of said Scheme of Administration
has been suspended then all the actions
taken by the Committee of Management of
Madarsa (respondent no. 4) in terms of the
said Scheme of Administration as well as the
powers of the Authorities flowing from the
same
are
rendered
void
ab
initio,
consequently, the resolution and dismissal
order dated 17.09.2022 and 21.09.2022
respectively passed by the Committee of
Management (respondent no. 4) and
subsequent orders becomes illegal being
beyond the competence and jurisdiction. In
support of his argument, the learned counsel
has placed reliance upon the judgment dated
05.08.2022 passed by in the case of Arshad
Javed Khan versus State of U.P. and 3
Others, having WRIT-A No. 10967 of 2022
that has been affirmed by the Division
Bench of this Court in Special Appeal No.
573 of 2022 Committee of Management,
Madarsa Masdarul Uloom Asdaqiya and
Ors. versus Arshad Javed Khan and Ors.
as reported in 2023 (3) ADJ 605 (DB) and
subsequently by the Hon'ble Supreme Court
vide order dated 12.05.2023 passed in
Special Leave Petition (Civil) No. 9393 of
2023
Committee
of
Management
Madarsa Masdarul Uloom Asdaqiya
Purani Chakiya & Anr. versus Arshad
Javed Khan & Ors.

11. Learned counsel for the
appellant further submitted that it is trite law
that there can be no consent given by the
counsel appearing for the parties to confer
jurisdiction upon a State officer against the
legal provisions. In the present case the
Hon'ble Single Judge vide Order dated
24.01.2023 passed in Writ-A No. 19669 of
2022 relegated the matter to the Registrar
Madarsa Education Board in view of the
provision contemplated under paragraph 11
of the Scheme of Administration and now
when the approval of the same has been
suspended by the Registrar (respondent no.
2) itself on 20.05.2023, no occasion arose to
the Hon'ble Single Judge to remit the matter
for re-consideration before the Registrar
(respondent no. 2) even if consent in that
regard was given by the counsels appearing
for the parties. Further, by setting-aside the
order dated 19.6.2023 passed by the
Registrar (respondent no.2), the Hon'ble
Single Judge vide the impugned Order dated
19.06.2023, virtually revived of illegal
orders of termination dated 17/21.09.2022
passed by the Committee of Management
(respondent no. 4). In support of his
submission, he has relied upon the
judgments passed by the Hon'ble Supreme
Court
in
the
cases
of
Godde
Venkateshwara Rao versus Government
of Andhra Pradesh and Others, reported
in AIR 1966 SC 828 and State of
Uttaranchal through Collector, Dehradun
and Others versus Ajit Singh Bhola and
Others, reported in 2004 (6) SCC 800 and
also the judgment passed by the Divisional
1498 INDIAN LAW REPORTS ALLAHABAD SERIES
Bench of this Court in the case of Ashok
Kumar Pandey and Others versus Basic
Shiksha Adhikari and Others, reported in
1992 (2) UPLBEC 960 (DB).

12. Lastly, the learned counsel for
the appellant submitted that the appellant
was appointed on the post of Assistant
Teacher in the Madarsa (respondent no. 4)
way back on 25.03.2005 and has served as a
teacher for a considerably long period of 17
years. Therefore, his appointment as a
teacher cannot be terminated after a
considerable lapse of time in view of the
Full Bench judgement passed by of this
Court in the case of Asha Saxena versus S.
K. Chaudhari and Others, reported in
1990 (01) UPLBEC 516. (FB). Relevant
portion of Paragraph 16 of the said judgment
is reproduced hereinbelow,

"16. ... In any view of the matter,
the appointments which were existing for
the last 17 years could not be set aside
after a lapse of such a long period. Even
the earlier Full Bench had quashed the
order of the Regional Inspectress of Girls
Schools referring the matter under Section
16-E(10) of the Act we are also of the
opinion that the aforesaid order is liable
to be quashed. It is true that there is power
under Section 16-E (10) of the Act to
cancel the appointments but the power has
to be exercised within a reasonable time.
The appointments had been made in the
year 1973 and by no stretch of imagination
it can be said that the exercise of that
power after the /apse of 17 year by the
Director of Education under Section 16E(10), on the facts and circumstances of
the case can be said to be exercise of a
power within a reasonable time. In our
opinion, the order of the Regional
Inspectress of Girls Schools referring the
matter to the Director of Education under
Section 16-E(10) is thus liable to be
quashed.

13. Per contra, Sri Sanjeev Singh,
learned
counsel
appearing
for
the
Committee of Management (respondent
no. 4), vehemently opposed the arguments
made by the learned counsel for the
appellant. He submitted that the appellant
procured the appointment on the post of
Assistant
Teacher
in
the
Madarsa
(respondent no. 4) on the basis of a fake
'Hafiz Certificate'; which was found to be
a non-existent document during the course
of verification and the Committee of
Management of Madarsa (respondent no.
4) after noticing the said fraud, terminated
the services of the appellant with
immediate effect. He contends that it is
well-settled proposition of law that fraud
unravels everything and vitiates every
solemn act. He in support of his assertion
placed reliance upon judgments passed by
this Court as well as by the Hon'ble
Supreme Court in the case of United India
Insurance Company Ltd. versus B.
Rajendra Singh and others, reported in
JT 2000(3) SC 151) and Ram Chandra
Singh versus Savitri Devi and others,
reported in 2003(8) SCC 319). He submits
that the Hon'ble Supreme Court in the case
of Employers in Relation to the
Management of Bhalgora Area of
Bharat Coking Coal Limited versus
Workmen being represented by Janta
Mazdoor Sangh, reported in (2021) 10
SCC 717 has made it abundantly clear that
'fraudulent
practice
to
gain
public
employment cannot be countenanced to be
permitted by a court of law'.

14. Defending the impugned order
dated 07.11.2023 passed by the Hon'ble
Single Judge, learned counsel for the
Committee of Management (respondent no.
5 All. Rehan Ahmad Vs. State of U.P. & Ors.
1499
4) asserted that it has very rightly set aside
the order dated 19.06.2023 passed by the
Registrar (respondent no. 2) in as much
as the Writ Courts cannot let an
appointment obtained through fraud to
survive. He submitted that the principle
of finality of litigation will not apply
where fraud has been played by the
delinquent to secure appointment. To
substantiate his argument he placed
reliance upon the judgement passed by
the Hon'ble Apex Court the case of S.P.
Chengal Varaya Naidu (dead) by L.Rs
versus Jagannath (dead) by L.Rs and
others, reported in AIR 1994 SC 853,
wherein the Hon'ble Supreme Court held
as under,

"7. The principle of "finality of
litigation" cannot be pressed to the extent
of such an absurdity that it becomes an
engine of fraud in the hands of dishonest
litigants. The courts of law are meant for
imparting justice between the parties. One
who comes the court, must come with
clean hands. We are constrained to say
that more often than not, process of the
court is being abused. Property-grabbers,
tax-evaders, bank loan- dodgers and other
unscrupulous is persons from all walks of
life find the court process a convenient
lever
to
retain
the
illegal-gains
indefinitely."

15. In the instant special appeal, we
are required to examine the correctness of
the impugned order dated 07.11.2023 passed
by the learned Single Judge setting aside the
order dated 19.06.2023 by means of which
the matter was remitted to the Registrar
(respondent no.2) to pass a fresh order after
putting to notice the concerned parties. It
would not be out of place to note that the
said order was passed with the consent of the
contesting parties.
16. We have heard the learned
counsel for the parties and perused the
material available on record. The issue on
illegality of the Scheme of Administration
for the first time has been raised on behalf of
the appellant-petitioner before this Court in
appeal. The fact that suspension of the
approval of the Scheme of Administration
by the Registrar vide order dated 20.05.2023
and its consequential effects were never
raised earlier by either of the parties. It is
noteworthy that in earlier two rounds of
litigation, the question of legality of the
Scheme
of
Administration
and
the
competence of the Registrar to deal with the
matter flowing from the said Scheme of
Administration were never raised by the
parties and in the earlier round of litigation
in Writ- A No.19669 of 2022 (Rehan Ahmad
versus Uttar Pradesh Board of Madarsa
Education and 5 others) filed by the
appellant-petitioner assailing the order of
dismissal from service, the appellantpetitioner did not dispute the same rather
accepting the legality of the same, accorded
consent for the matter to be decided by the
Registrar as an alternative remedy in terms
of paragraph no.11 of the Scheme of
Administration and accordingly, the Writ
Court vide order dated 24.01.2023 disposed
of the writ petition with certain directions.
Accordingly the Registrar (respondent no.2)
decided the matter and passed the following
order:

"पंत्ावली पर प्राप्त अमभलेखों / साक्ष्यों का अनुशीलन,
परीक्षण करने पर पाया गया मक सेवायोमजत होने के समय श्री रेहान
अहमद द्वारा प्रबन्तंत् / प्रवस्यक पाया सईदुल उलूम बेहका प्रामुपती,
प्रयागराज को उपलब्ध करायी गयी महब्ज की मडग्री हामफज (महब्ज)
के अमभलेखों को प्रबन्धक, मदरसा इस्लाहुल मुस्लेमीन अलीपुरजीता,
कौशाम्बी से प्राप्त कर अवलोकन मकया गया और पाया गया म़ि महब्ज
का रमजस्टर मकसी सक्षम स्तर से प्रमामणत नहीं है। प्रबन्धक मदरसा के
अनुसर महब्ज के छात् की हामजरी अंमकत नहीं होती है। महब्ि का
प्रमाण पत् मदरसे में आयोमजत होने वाले वामर्टक जलसे में छात्ों को
1500 INDIAN LAW REPORTS ALLAHABAD SERIES
मवतररत कर मदया जाता है, मजसकी प्रमत को सम्बमन्धत रमजस्टर में
नहीं रखा जाता है। महब्ज से सम्बमन्धत छात् द्वारा कुरान मजीद को
कंठस्थ कर लेने के पश्चात महब्ज का प्रमाण पत् दे मदया जाता है। यह
मदरसा बोडट द्वारा मनधाटररत कोई पाठ्यिम नहीं है तथा महय्ज के
सम्बना में गदरसा बोडट द्वारा कोई समय सीमा मनधाटररत नहीं है, मजरा)
श्री रेहान अहमद के महब्ज की मडग्री के सम्बन्ध में कोई स्पि पुमि नहीं
हो पायी। इसके अमतररक्त श्री रेहान अहमद द्वारा उपलब्ध कराया गया
अन्य अकपत्ों / प्रमाण पत्ों का भी अवलोकन मकया गया मजसमें
उनके द्वारा इण्टरमीमडएट उदूट रामहत एवं मनयुमक्त के समय वर्ट 2005
की काममल की मडग्री एवं फामजल के अमतररक्त अन्य मडग्री भी दो
अलग-अलग बोडट से प्राप्त करायी गयी हैं, के अवलोकन से रपि होता
है मक तहतामनया कक्षाओं में मशक्षण कायट हेतु उनके पास पयाटप्त मडग्री
हैं। ऐसी मस्थमत में मात् महब्ज की मडग्री के आधार पर प्रबन्धक मदरसा
द्वारा उनकी रोवा समाप्त मकया जाना न्यायोमचत नहीं है। क्योंमक महब्ज
की मडग्री मकसी मवश्वमवद्यालय एवं बोडट रो प्रमामणत नहीं है और इसी
आधार पर प्रदेश केः लगभग सभी मदरसों में मशक्षक कायटरत हैं। ऐसी
मस्थमत में प्रबन्धतत् / प्रबन्धक मदरसा द्वारा श्री रेहान स०अ०
तहतामनया की; की गयी सेवा समामप्त मदनांक 17.09.2022
मनयमानुरूप न होने के कारण मनरस्त मकये जाने योग्य है, मजसे मनरस्त
मकया जाता है एवं श्री रेहान को सवेतन बहाल करते हुए प्रबन्धक
मदरसा को मनदेमशत मकया जाता है मक वह श्री मोहम्मद रेहान स०अ०
तहतामनया से पूवट की भांमत मनयमानुसार मशक्षण कायट कुरायें।
ररट यामचका संख्यां-19669/2022 में मा० उछच
न्यायालय इलाहाबाद द्वारा पाररत आदेश मदनांक 24.01.2022 के
समादर में प्रकरण को एतद्वारा मनस्ताररत मकया जाता है।"

17. In the second round of
litigation, wherein the Committee of
Management (respondent no.4) dissatisfied
with the aforesaid order dated 19.06.2023
passed by the Registrar (respondent no.2)
filed a Writ Petition No.11817 of 2023 (C/M
Madarsa and another versus State of U.P.
and 7 others). The appellant who was the
respondent in the said writ petition contested
the matter but did not raise the aforesaid
question regarding the validity of the said
Scheme of Administration nor did he raise
the competence of the Registrar to deal with
the matter and the writ petition was finally
allowed by the Writ Court vide the
impugned order dated 07.11.2023. The
Hon'ble Single Judge with the consent of the
parties remitted the matter to the Registrar
(respondent no.2) to pass a fresh order by
setting aside the order dated 19.06.2023
passed by the Registrar (respondent no.2).

18. Suffice it to say that in the
aforesaid second round of litigation too, the
appellant did not raised the question of the
validity of the Scheme of Administration or
the competence of the Registrar rather
accorded his consent for the remittance of
the matter to the respondent no.2. It has also
been brought to the notice of this Court that
the order of the Registrar dated 20.05.023
whereby he suspended the approval of the
said Scheme of Administration has never
been challenged by the parties. The order
dated 20.05.2023, is reproduced below for
the ready reference:

"प्रेषक,
रदजस्ररर,
उ०प्र० र्िरसर दशक्षर पररषि
704, जवरहर िवन, िखनऊ।
सेवर र्ें,
दजिर अल्पसांख्यक कल्यरण अदिकररी सांबांदित जनपि
(बस्ती, सांतकबीर नगर, िेवररयर, बिररर्पुर, गरजीपुर, कुशीनगर,
जौनपुर, िखनऊ,कौशरम्बी, प्रयरगररज)
पत्रां ांक- 476/र्०दश०परर०/2023
 दिनरांकः 20/05/2023
दवषयः र्िरसों की प्रशरसन योजनर के अनुर्ोिन के
सम्बन्ि र्ें।
र्होिय,
दवषयगत सांििम र्ें अवगत कररनर है दक उत्तर प्रिेश
र्िरसर दशक्षर पररषि अदिनयर्, 2004 की िररर- 22(5) र्ें
र्िरसों की प्रशरसन योजनर के सांबांि र्ें दनम्न व्यवस्थर िी गई है-
"प्रत्येक सांस्थर की प्रशरसन की योजनर पररषि के अनुर्ोिन के अिीन
होगी और प्रशरसन की योजनर र्ें दकसी िी सर्य कोई सांशोिन यर
पररवतमन पररषि के पूवम अनुर्ोिन के दबनर नहीं दकयर जरयेगर।
उल्िेखनीय है दक पत् के सरथ सांिवन 31 र्िरसों की
सूची दजनकी प्रशरसन योजनर पर पररषि करयरमिय द्वररर सहर्दत प्रिरन
की गई है, उसे उ०प्र० र्िरसर दशक्षर पररषि द्वररर अनुर्ोिन प्ररप्त होने
तक अथवर पररषि द्वररर सांशोिन कर सुझरव दिये जरने तक प्रिरन की
5 All. Rehan Ahmad Vs. State of U.P. & Ors.
1501
गई सहर्दत तत्करि प्रिरव से अदग्रर् आिेश तक स्थदगत की जरती
है।
सांिवनक- उपरोक्तरनुसरर।
(िविीय)
(जगर्ोहन दसांह) रदजस्ररर/ दनरीक्षक
पत्रांक व दिनरांक उपरोक्तरनुसरर।
प्रदतदिदप- दनम्नदिदखत को सूचनरथम एवां आवश्यक
करयमवरही हेतु प्रेदषत- 1. र्र० अध्यक्ष, उ०प्र० र्िरसर दशक्षर पररषि,
िखनऊ। 2. प्रबन्िक/प्रिरनरचरयम सांबांदित र्िरसर।
(जगर्ोहन दसांह) रदजस्ररर/ दनरीक्षक"

19. Furthermore, it is evident from
the
record
that
the
Scheme
of
Administration in question was suspended
by the Registrar (respondent no.2) only on
25.05.2023 vide the above the abovementioned order meaning thereby that the
same was enforced at the time of passing of
the dismissal order. In any case the legality
of the Scheme of Administration was not a
subject matter of dispute before the Writ
Court. Accordingly, the judgments referred
by the learned counsel for the appellant in
respect of his contention are not attracted in
the factual matrix of the case.

20. Insofar as the correctness of the
impugned order dated 07.11.2023 passed by
the Hon'ble Single Judge is concerned, the
same was passed on the basis of the material
that was available before the leaned Writ
Court. The Hon'ble Single Judge while
deciding the said writ petition, set aside the
order dated 19.06.2023 passed by the
Registrar (respondent no.2) and remitted the
matter to the respondent no.2 with a
direction to pass a fresh order after putting
to notice the writ petitioner, Rehan Ahmad
(respondent no.4) and Principal, Madarsa
Islahul Muslemeen Alipurjeeta, District-
Kaushambi (respondent no.5). While fixing
a particular date, it is also directed that on
the date so fixed, the version submitted by
the parties be exchanged and after hearing
the orders be passed within a stipulated
period.

21. While deciding the matter, the
Hon'ble
Single
Judge
categorically
observed that the respondent no.2 shall pass
order strictly in accordance with law dealing
with each and every contentions either legal
or factual raised by the respective parties.
Taking into consideration the factual matrix
of the case and also the settled legal
preposition that the appeal against the order
passed with the consent of the parties are
normally not entertainable in unless any
such legal question is involved that may
cause a serious legal consequence.

22. It is a trite law that once the
consent by the contesting parties is accorded
before the Court of law then they have no
right to challenge the order passed on the
basis of their consent in appeal and only
non-contesting parties have privilege to
prefer appeal. A co-ordinate Bench of this
Court while deciding the Special appeal
Defective No.826 of 2015 [Neutral Citation
No.2016: AHC: 285 (D.B.)] has held that an
Special Appeal arising out of an order
passed with consent of the parties is
incompetent and not maintainable. The
relevant portion of the order passed in the
above mentioned case is as under:

"On the matter being taken up
today, in our respectful opinion, present
special appeal in question cannot be held to
be competent and maintainable for the
simple reason that once the order dated 20th
March, 2015 is a consent order, then in such
situation, in this background, the special
appeal in question will not at all be
entertained and in case it is the case of the
respondents-appellants
that
on
wrong
premise the said agreement has been arrived
at and the question is not covered with the
1502 INDIAN LAW REPORTS ALLAHABAD SERIES
decision of Special Appeal No.276 of 2006
decided on 28th August, 2010, then the
remedy lies in approaching the learned
Single Judge for recall/ review of the said
order.
In view of this, present special
appeal
in
question
is
dismissed
as
incompetent."'

23. Having regard to the facts and
circumstances of the case, this Court finds
no reason to entertain the said appeal filed
by the petitioner in the teeth of the fact that
the Hon'ble Single Judge vide the impugned
order dated 07.11.2023 has made it open to
the parties to press their pleas before the
Registrar (respondent no.2) with a direction
to the said authority to pass order strictly in
accordance with law dealing with each and
every contentions either legal or factual
raised by the respective parties.

24. In view of the deliberations as
made hereinabove, we find no reason to
interfere with the impugned order.

25. The present Special Appeal is
accordingly dismissed with no order as to
cost.
----------
(2024) 5 ILRA 1502
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.05.2024

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Writ-A No. 3660 of 2024

Rudrabhan Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Arunima Shukla
Counsel for the Respondents
C.S.C.

(A) Service Law - Pensionary benefits -
Uttar Pradesh State Educational Institution
Employees Contributory Provident FundInsurance Pension Rules, 1965 - Rule
19(b), Regulation 21 of Chapter III , Uttar
Pradesh Intermediate Education Act, 1921
- Regulation 21 of Chapter III of the
Regulations made under the Act 1921 -
date of superannuation/retirement -
where a power is given to do a certain thing
in certain way, the thing must be done in
that way or not at all and the other
methods of performance are necessarily
forbidden. (Para - 20)

Matter for grant of pensionary benefits to
petitioner remitted back - petitioner appointed on
an ad-hoc basis - later regularized - attained age
of superannuation - Deputy Director of Education
(Secondary)
denied
petitioner's
pensionary
benefits - citing Government Order - petitioner
challenged order - ground - Government Order
does not have retrospective effect - entitled to
pensionary
benefits
from
the
date
of
superannuation. (Para -3 to 5 )

HELD: - Petitioner entitled to pensionary
benefits from the date of superannuation.
Government Order does not have retrospective
effect. Impugned order quashed. (Para -
22,23)

Writ Petition Allowed. ( E-7)

List of Cases cited:

1.
Chairman
Railway
Board
Vs
C.R.
Rangadhamaiah , AIR (SC) 1997 0 3828
(Constitutional Bench)

2. Punj. St. Cooperative Agricultural Development
Bank Ltd Vs Registrar, Cooperative Societies, AIR
(SC) 2022 0 1349

3. Assistant Excise Commissioner, Kottayan &
ors. Vs Estgappan Cherian & Anr., 2021(10) SCC
210

4. Nazir Ahmad Vs King-Emperor, 1936 SEC
OnLine PC 41